1)

TOSFOS DH v'Ha Ishtabdei Lehu Nichsei

"

(SUMMARY: Tosfos gives two explanations of this.)

(a)

Possibility #1: He holds now that brothers who divided are heirs, and a Milveh Al Peh (a loan without a document) is collected from heirs.

(b)

Possibility #2: He holds that a Milveh ha'Kesuvah b'Torah (a debt that the Torah was Mechadesh) is like [a debt] written in a document (so it is collected from heirs).

(c)

Conclusion: However, in the conclusion it says that they argue about this (brothers who divided. R. Meir holds that they are half heirs and half buyers, and R. Yehudah holds that they are heirs, and a Milveh Al Peh is not collected from buyers. Alternatively, all hold that they are half heirs, half buyers. R. Meir holds that a Milveh Al Peh is not collected from buyers, and R. Yehudah holds that it is - Yad Binyamin.)

2)

TOSFOS DH d'Kuli Alma Eis Lehu d'Rav Asi v'Chulei

" '

(SUMMARY: Tosfos resolves this with their opinions about Bereirah elsewhere.)

''

(a)

Inference: R. Meir is unsure whether Yesh Bereirah or Ein Bereirah, like Rav Asi.

'' () [" ] () [" - ] ('' :) ( .)

(b)

Question #1: R. Meir holds that Yesh Bereirah regarding one who bought wine from Kusim, in Bava Kama (69b) and Gitin (25a)!

' ( .) ' ''

(c)

Question #2: Rava himself establishes here [R. Meir and R. Yehudah] like Rav Asi. This is astounding, for in Gitin (26a) he says that both R. Yehudah and R. Shimon hold that Yesh Bereirah!

(d)

Answer: We can distinguish Bereirah in which he explicitly stipulates, e.g. "two Lugim that I will separate later [should be Terumah now]", or "I have Bi'ah with you [to make Kidushin] on condition that father will be pleased", and "this is your Get if I will die [from this illness." Perhaps Bereirah helps then, even if normally Ein Bereirah.]

( :) ( :)

(e)

Support: This answers a contradiction in Shmuel. He holds that Ein Bereirah in Beitzah (37b) regarding two who bought an animal in partnership, and in the case in Gitin (75b) Shmuel enacted [a text] for a Get of a Shechiv Mera (one who is dangerously ill) he holds that Yesh Bereirah, and it is a Get when he dies, like [the Gemara] infers in Gitin (25b).

3)

TOSFOS DH d'Amar Rav Asi Achin she'Chalku Mechetzah Yorshin v'Chulei

" '

(SUMMARY: Tosfos discusses the reason to say so.)

'' ( .) ( .)

(a)

Reference: Rav Asi's teaching is in Bava Kama (9a) and in Bava Basra (107a). They argue there about brothers who divided, and a creditor [of the father] came and took the portion of one of them;

1.

Rav taught that the division is Batel, for they are heirs (and all must pay the debt together). Shmuel said that [the brother who lost his land] lost (his brothers do not compensate him), for they are like buyers without Achrayus.

( ) [" - "]

(b)

Explanation #1: Rav Asi is unsure. [The brother who lost his land] receives his portion (what his brother should have paid, i.e. half of what was taken from him) from the remaining property. A quarter [of the amount taken] he receives in land, and the other half in coins, for he is unsure if [brothers] are heirs, and he receives everything in land, or like buyers with Achrayus, and [his brother] can dispel him with coins.

' ()

(c)

Consequence: According to this Perush, R. Chananel's text cannot be. His text in Bava Basra says "three brothers.'

(d)

Explanation #2: Some say that [the brother who lost his land] receives half his portion that it is proper for him. A quarter he receives in land, and a quarter in coins, and the other half he loses;

[" - ]

1.

This is because if he is an heir, he should receive his full portion (the amount he paid that his brother(s) should have paid). If he is a buyer without Achrayus, he should lose [everything]. He receives half amidst Safek;

[" - ] [" - ]

2.

And what he receives, also we are unsure if he receives due to inheritance, and he should take everything in land, or because he is like a buyer with Achrayus, and he receives everything in coins. Therefore, he receives half [of the half he receives] in land, i.e. a quarter, and half in coins, i.e. the other quarter.

() [" - ]

(e)

Question #1: Now, if we had a Safek only if they are like heirs, or like buyers without Achrayus, he would receive half his share in land;

1.

Because there is also a Safek, that even if he is a buyer, perhaps he is a buyer with Achrayus, are his rights weaker?! Just the contrary, we should say that he gets half his portion in land, and [another] quarter in coins!

'

(f)

Question #2: Here we establish our Mishnah, e.g. there are only five Sela'im. If Rav Asi considers them like heirs only for a quarter, even if there are 10 Sela'im they are exempt, for the Kohen can collect only the quarter for which they are like heirs, i.e. half of five!

'' ( .)

(g)

Explanation #3: According to the first version that Rashi explained in Bava Kama (9a), that he receives half his portion in land, or in coins, for we are unsure if they are like heirs or like buyers without Achrayus...

1.

Also according to that version, it is possible that the text says two brothers, or three brothers.

'' [" - ]

(h)

Question #1: What is the Gemara's source that Rav Asi is unsure at all about heirs? Perhaps it is obvious to him that they are not heirs, but he is unsure if they are like buyers with Achrayus or without Achrayus!

(i)

Question #2: It was not appropriate to teach twice "a quarter", since it teaches or [land] or [coins]!

[" - ]

(j)

Conclusion: The latter version of Rashi [in Bava Kama, which is like Explanation #1 in this Tosfos] is correct.

() [" - ]

(k)

Consequence: It is impossible for the text to say "three brothers." Why should it discuss three?!

[ - ] '' ' () [" - , "]

1.

Granted, had it mentioned five, the Gemara is wont [to do so] everywhere, e.g. five people claim from him, five women whose babies became mixed, if one stole from one of five;

2.

However, it is not wont [to mention] three, since [the law of] two is the same as three.

''

(l)

Question: Since Rav Asi is unsure if they are like heirs, or like buyers, he should say ha'Motzi me'Chavero Alav ha'Re'ayah!

( - )

1.

Even according to Sumchus (who says that we divide money in doubt), here it is unreasonable to say that they divide due to this Safek that Chachamim are unsure how to rule!

''

(m)

Answer: There are matters that when Chachamim are unsure of the law, like here, they made them like Vadai half so and half so.

('' .) [" - ]

(n)

Support #1: We find like this also in Bava Metzi'a (83a) regarding people who carry on shoulder-poles (one burden in front and one in back), and it broke. He pays half, for it is close to negligence, and close to Ones;

'' ''

1.

No matter what you will say, this is difficult! Either it is total negligence (if it is improper to carry like this), or it is total Ones (if it is proper). And if we are unsure, we should say that ha'Motzi me'Chavero Alav ha'Re'ayah! (Rather, they enacted to make it like Vadai half negligence and half Ones.)

' ('' .) ' () [" - ]

(o)

Support #2: In Bava Basra (145a), R. Yosi says that if [a Kohen] was Mekadesh a woman with 20 [Sela'im, and she was raped, and he must divorce her], he gives to her 30 half [Shelamim], for he is unsure whether or not Kidushin money is given l'Tivu'in (to stay with her, or if it must be returned if he cannot marry her). He considers it as if Vadai, half is l'Tivu'in, and half is not l'Tivu'in.

' ( .) () [" - ]

(p)

Support #3: In Bava Basra (126a) regarding a Bechor, we say that a loan with him (he owed money to his father), they divide (he keeps half his extra share of it, and gives half to his brothers. We are unsure whether it is considered Muchzak to his father.)

' ('' .)

(q)

Support #4: According to this Perush, it is fine the case of the bathhouse in Bava Metzi'a (102a. It was rented for 12 Dinarim for the year, a Dinar per month.) They split the month added in a leap year according to everyone. We need not establish it like Sumchus.

(r)

Observation: In some matters, Chachamim said that now that it was not said that the Halachah follows Ploni, and not that it follows Almoni, if one did like Ploni, it stands, and if one did like Almoni, it stands.

('' : )

(s)

Observation: In some matters, Chachamim said Shuda d'Daina (it is left to the judges' discretion), like in Bava Basra (62b) "some say this way, and some say this way. Shuda d'Daina."

4)

TOSFOS DH ud'Kuli Alma Milveh ha'Kesuvah b'Torah Lav k'Kesuvah bi'Shtar Damya

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(SUMMARY: Tosfos resolves this with R. Yehudah's opinion elsewhere.)

(a)

Explanation: Also in the conclusion it is so. We say that they argue about Rav Asi's law or Rav Papa's law. This implies that if all held like Rav Asi and like Rav Papa, they would be exempt, due to "five, and not half of five."

( :)

(b)

Question #1: Below (49b), it says that R. Yehudah holds that [Milveh ha'Kesuvah b'Torah] is like a debt written in a document!

(c)

Question #2: According to the conclusion that they argue about Rav Papa's law, that R. Yehudah does not hold like Rav Papa, this means that he holds that a Milveh Al Peh is collected from buyers;

' ('' .)

1.

Does R. Yehudah argue with the Mishnah (Bava Basra 175a) "if one lent to his friend with a document, he collects from Meshubadim. A Milveh Al Peh, he collects from Bnei Chorin"?!

2.

Rav Papa's teaching was said primarily to teach that he collects from heirs, unlike Rav and Shmuel, who say that a Milveh Al Peh is not collected from heirs, and not from buyers;

''

3.

Rav Papa's teaching was said primarily to teach that he collects from heirs, unlike Rav and Shmuel, who say that a Milveh Al Peh is not collected from heirs, and not from buyers;

( ) [" - ] () [" - ] [" - ]

(d)

Answer #1: According to the conclusion, they do not truly argue about Rav Papa's teaching. Rather, they argue about a Milveh Al Peh like this case of Pidyon ha'Ben, which is Kesuvah b'Torah;

'' ( :) ' ( ) [" - ]

1.

The Sugya below (49b) is [also] in Kidushin (29b), and the text says there "R. Yehudah holds like he taught elsewhere, that Milveh ha'Kesuvah b'Torah is like [a debt] written in a document." This is according to his reason, that he said here.

(e)

Answer #2: They truly argue about Rav Papa's teaching. Rav Papa himself, we must say that also he discusses Milveh ha'Kesuvah b'Torah;

( :)

1.

Source: In Kidushin (13b), Rav Papa says that the Halachah is, a Milveh Al Peh is collected from heirs, for Shibud is mid'Oraisa;

' ('' .)

2.

Implied question: In Bava Basra (176a), he explains the reason due to Ne'ilas Delet Bifnei Lovin (if lenders cannot collect from heirs, perhaps people will be reluctant to lend)!

'' () [" - ]

3.

Answer: We must say that in Kidushin he discusses Milveh ha'Kesuvah b'Torah, for he discusses the Chiyuv to bring a Korban, and he holds that it is collected from heirs, but not from buyers;

'

i.

This is what we discuss here. R. Yehudah argues with Rav Papa, and holds that it is collected from buyers.

5)

TOSFOS DH Milveh ha'Kesuvah b'Torah

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(SUMMARY: Tosfos discusses what is considered Milveh ha'Kesuvah b'Torah.)

() [" - ]

(a)

Explanation: This is something like Pidyon ha'Ben, Erchin, damages, and similar matters, that I would not obligate him, had the Torah not obligated him;

'' ( ) () [" - ] ''

1.

However, a Milveh Al Peh, even though it is written "ha'Ish Asher Atah Nosheh Bo Yotzi Elecha Es ha'Avot", is not called Kesuvah (b'Torah), to be [like] written in a document, even though [the verse] discusses [Milveh] Al Peh;

:

2.

This is because he is not obligated due to what is written in the Torah, since even without this, obviously he must pay what [the other one] lent to him!

48b----------------------------------------48b

6)

TOSFOS DH d'R. Meir Savar Chamesh

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(SUMMARY: Tosfos distinguishes this from five half-cattle.)

('' :)

(a)

Implied question: Why is this unlike Chamishah Bakar (that one who stole and slaughtered or sold an ox must pay)? We conclude even five half-cattle the Torah said (e.g. if the thief was a partner and already owned half of the cow, he pays five halves)!

(b)

Answer: That is payment, and he should pay what he is liable. Here, the Torah imposed on him a Mitzvah of five Sela'im. It is not fulfilled through less than five.

''

(c)

Implied question: He can pay [half a Slea to each of] 10 Kohanim one after the other! (This is according to Tosfos' text/understanding below (51b), unlike that of Rashi and others.)

(d)

Answer: Here is different, for he is obligated only half of five.

7)

TOSFOS DH v'Im li'Shnei Kohanim Nasan Ein Yachol Lehozti mi'Yadam

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(SUMMARY: Tosfos explains why this is unlike Takfo Kohen.)

'' ( - ) ('' :)

(a)

Question: Since if he did not give, he is not obligated to give, also now that he gave, it should be like if a Kohen seized [a Safek Bechor]. We take it from him, like it says in Bava Metzi'a (6b)!

() [" - ]

(b)

Answer: Here it is better, for he does not know from whom to take (so he cannot take from either).

'

(c)

Question: Below it is more difficult, regarding a baby that died on day 30. R. Akiva says that if he gave, he does not take back. If he did not give, he does not give;

1.

Since if he did not give, he does not give, also now that he gave, it should be as if a Kohen seized!

'' '' ''

(d)

Answer: Since initially, he gives to him due to Matanos Kehunah, even though afterwards it became revealed that if he did not receive, it was not proper to take amidst Safek, we do not say that we take it from him.

('' :) ''

(e)

Support: The same applies in Bava Metzi'a (102b, regarding a bathhouse rented for 12 Dinarim for the year, a Dinar per month). Even though at the beginning of the month, the entire month belongs to the landlord, we do not compare it to a Kohen who seized.

8)

TOSFOS DH Im Nasno Ad she'Lo Chalko v'Chulei

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(SUMMARY: Tosfos asks why the argument needed to be taught twice.)

'' :

(a)

Implied question: We need some Tzerichusa why it taught in both of them the argument of R. Meir and R. Yehudah (in the Mishnah on 48a, when twins became mixed, and here, when boys of two wives became mixed, and one of them previously gave birth).

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